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Will the Supremes listen to the Land of Lincoln? (courtesy

Over at, scribe Brian Doherty ID three firearms-related legal cases that could make it to the Supreme Court. NRA v. BATFE deals with handgun sales to Americans under 18. New York State Rifle and Pistol Association [NYSRPA] v. City of New York deals with The Big Apple’s “asininely picayune restrictions” (Doherty’s words) for transporting firearms outside the home. To my mind Drake v. Filko is the big kahuna. “This suit challenges New Jersey’s Handgun Permit Law for carrying weapons outside the home, a law upheld so far by both the U.S. District Court for the District of New Jersey and the Third Circuit Court of Appeals. The plaintiffs argued that requiring a potential gun carrier to prove to the police a ‘justifiable need’ involving specific previous threats is an unconstitutional prior restraint on their Second Amendment rights.” A Supreme Court ruling could eliminate “may issue” concealed carry licensing regimes, and restore deprived (not depraved) Americans’ gun rights. Fingers crossed. [h/t Pascal]


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  1. Drake doesn’t seem like the type of case that SCOTUS would hear. It’s a New Jersey specific test case, so there’s no circuit conflict of the type that often compels SCOTUS to intervene (notwithstanding contrasting elements in the 7th Circuit opinion in Moore v. Madigan).

    Volokh gives SCOTUS a 25% chance of granting cert in this case. I’d say that he’s an optimist.

    • Would your opinion change if you knew that three California cases and one Hawaii case are all pending in the Ninth Circuit which raise the same issue–i.e., when “may issue” really means no issue? Those cases were argued one week shy of a year ago, and all raise the issue as to the appropriate standard of review for outside the home carry. Although 2-3-4 have all ruled in support of may issue laws, a contrary decision by the Ninth [Hey, I can dream, right?] would certainly favor cert, particularly when a state as big as California (its actually the sheriffs) asked for review.

      • Would your opinion change if you knew that three California cases and one Hawaii case are all pending in the Ninth Circuit which raise the same issue–i.e., when “may issue” really means no issue?

        Maybe, but probably not. The Second and Third have blessed these monstrous “may issue means no issue” laws. Unless other circuits hold to the contrary, there’s just no incentive for SCOTUS to get involved.

  2. Let’s be consistent: guns do not save lives or make us safer. Guns do not commit mass murder and guns do not shoot the mass murderer. People w/ guns do all that; they are tools. But yes, legal access to those tools is better than not.

  3. IF we get a favorable ruling from SCOTUS on the New Jersey issue we can only hope that it is an incorporated ruling, like McDonald, otherwise it is a lot of effort for limited results.

    A ruling that virtually eliminates the “may issue” back door gun control would be marvelous! You can bet the vote will be 5 to 4, however it comes out. Personally I would suggest putting extra security on the conservative leaning justices in order to prevent an Obama appointee throwing off the balance. Just sayin’.

  4. “NRA v. BATFE deals with handgun sales to Americans under 18.”

    Assuming that the case really is about selling handguns to citizens under 18, I don’t see SCOTUS taking that case. They will be perfectly content with minors not having the legal ability to purchase any firearms, much less handguns. If the case is really about citizens under the age of 21 but at least 18 years of age being able to purchase handguns, that will be interesting.

    • Robert got it wrong.

      From the link:

      1. NRA v. BATFE. This case challenges the 1968 prohibition on licensed gun dealers selling handguns or handgun ammo to adults between the ages of 18-20. (They can buy long guns, such as rifles or shotguns, and they are legally allowed to possess handguns, but their ability to obtain them is quite restricted if licensed dealers can’t sell to them.) The case has dragged on since 2011, so a new plaintiff had to be added as the original pair reached age 21. The NRA and their aggrieved plaintiffs argue that the law violates their Second Amendment rights and their rights under the equal protection clause of the Fifth Amendment.

      • And allowed to carry and use pistols in combat, as well as Dragon rockets and grenade launchers. Or would those be considered “long guns”?

        • I was able trained to use a full auto machine gun at 17. The military insisted I be proficient with it. And a 9 mm too. At the time I was too young to own but able to use them.

  5. IF (and that is a big IF) SCOTUS were to hear it I would expect them to have to come down on the side of ‘shall issue’, they practically did in Heller saying that D.C. MUST issue Heller a license unless he is a prohibited person.

  6. After reading Doherty’s article, I think SCOTUS might take Drake due to the Third Circuit’s convoluted reasoning as to why the NJ law is not a imposition on the 2nd Amendment. Claiming that just because something has been in customary usage doesn’t make it constitutional. Just look at Dred Scott or Plessey v Ferguson.

    • I think the Appellees error on pg 9
      Firearms have always been more heavily regulated in the public sphere so, undoubtedly, if the right articulated in Heller does “extend beyond the home,” it most certainly operates in a different manner.

      I call BS. Perhaps just tactics (break the wall down bit by bit) but this is wrong headed. “Always” being a very large place, this is not correct or accurate. And were exists still violates the 2nd. Even if this has been the practice of the progressives and has wrongly be accepted for the last 100+ years. “operates” differently? As in No Stand your Ground unless inside your house? BS.

  7. I read the title as “Is Drake the next Hitler” and thought “Woah wtf did that singer dude say to piss off Farago?”

  8. picayune, picayune!!! Really????
    You better believe this is important to me. Living in Kalifornia going to shall issue is a huge deal!

    • picayune, as in being “gratuitously restrictive for silly reasons,” not picayune as in “unimportant to the poor sod who got denied.” or for that matter “unimportant to anyone who cares about RKBA”

      I’d love to see this fly.

  9. If Drake v FIlko actually goes to conference in the next few months (current deadline is jan 9th, i looked it up) I expect a denial. There was not enough of a split for them to take Woollard. 0-2 on carry cases so I think we (they) need to see more cards before granting cert. I seem to recall the NJ supreme court has a carry case of its own, SCOTUS would almost certainly want to at least wait to hear what NJ SCOTUS says. Also, the DC law has been challenged if we can get a judge to actually rule.

    • AS noted above, the Ninth has a series of cases pending, at least four of which were argued a year ago. I think the SCOTUS is waiting for the Ninth to weigh in. Looking at the circuit map [], I think the Ninth is the only remaining circuit in which a “may issue” case can arise–all of the rest of the circuits are essentially shall issue.

    • So SCOTUS thinks that somehow it’s role is to decide what is and is not Constitutional, but they are not willing to weigh in unless two or more Appeals courts can’t agree first? Now THAT’S Bullshit. No offense to the “Ladies” on the team, but it really should be part of the Senate approval process to check whether or not these guys have any balls before they approve the nomination.

      • SCOTUS has denied two carry cert petitions so you have to wonder why. The good scenario is they are waiting for a split. The bad scenario is that at least one of the Heller 5 does not agree the constitution protects carry, so they cannot get 5 votes. Perhaps one of the Heller 5 thinks carry is a states rights issue. You might think McDonald settled that, but judges have regrets and often curtail prior decisions.

        The problem with the conservatives on the court is that some were picked as law and order type conservatives, not libertarian type conservatives. Law and order conservatives have an instinctive revulsion to guns on the street. Nixon was a law and order conservative who wanted to ban handguns. Some of the conservatives come from law and order conservatives of that era.

        Just to be clear, I was very disappointed they did not take Woollard. But again, gotta wonder why.

  10. As a Maryland resident I was very disappointed when the Supremes declined to hear Woollard vs. Sheridan, a case about the constitutionality of May Issue. I was previously unaware of Drake vs. Filko. It sounds like if we win here, I will also win in MD.

  11. I am fully expecting a denial.

    I certainly do not trust the SCOTUS to justly rule on this case even if it did, somehow by some miracle, try this case. This is the same court that told us the NSA can electronically spy on us al it wants to, that the Patriot Act was legal, and that indefinite detention of American citizens without charge or trial is A-OK.

    Forgive me if my optimism is (rightfully) non-existent.

    • What you wrote is true — yet it must be said that this is the most pro-2A SCOTUS ever.

      But after deciding the most important 2A cases in history, I think that SCOTUS would like to move on to something else. SCOTUS doesn’t take that many cases to begin with, and its not going to become a one issue Court.

      • This is the most pro-2A SCOTUS in recent history, you mean.

        And it’s true that the SCOTUS isn’t going to become a one-issue court, though it’s hard not to appreciate the attention they’ve given to that particular issue (even if it didn’t work out like a very well should have in the end).

        What do you think the chances are of there eventually being courts set up specifically for this issue, though? Sure, it would be nice to have it presided over by judges who don’t have their completely up their own asses and tow certain “party” lines, but given the current political climate I sincerely doubt we would be so fortunate.

  12. Stupid Idiots running that state are so brain dead to the Constitution,NO ONE has to PROVE NEED ,Read the Federal Statutes ,idiots .You the State of New Jersey. ,have to Prove How you have the right to pass unconstitutional laws that INFRINGE on the RiGHT TO KEEP AND BEAR ARMS . It’s completely sickening how these assholes ‘don’t get it’ THEY ARE iLLEGAL And these politicians need to go to jail for breaking federal laws.


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